How a Balanced Budget Amendment Would Work

Republicans' unlikely plan to include spending caps in the Constitution: What would it do, and who would enforce it?

Republicans in Congress are proposing a balanced-budget amendment to the Constitution. "Adoption of the balanced-budget amendment would help ensure such spending restraints are set in stone, and the certainty it provides will help create a better environment for job creation across the country," House Speaker John Boehner said in a YouTube video he released last week.

The Constitution has not been amended since 1992, when the 27th Amendment was adopted, stating that "No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened." The last time a balanced-budget amendment came up was 1995, when the new Republican Congress narrowly failed to pass one.

So what are Republicans proposing with the latest balanced-budget amendment? What is it, exactly, and how would it work?

WHAT WOULD IT DO?

There are two proposals floating around Congress, one authored by Rep. Bob Goodlatte (R-Va.) and another by Sens. Orrin Hatch (R-Utah) and Mike Lee (R-Utah). While the two bills are slightly different, they would:

require 3/5 (House version) or 2/3 (Senate version) majority votes in Congress for spending to exceed revenue in a given year

bar courts from raising taxes to satisfy the above provisions (only included in Senate version)

requirements could be waived during a declared war

WHO WOULD ENFORCE IT?

Let's say a balanced-budget amendment has been added to the Constitution, but Congress and the president simply can't agree on a spending plan that abides by it. They fail to reach a 3/5 majority to break the constitutional amendment. What happens?

Enforcement would be tricky, and, aside from added political pressure on Congress and the president, the courts would ultimately have to enforce a balanced-budget amendment.

"If there is a budget submitted that violates the Constitution, anyone with standing can file for injunctive relief. The only thing that the courts cannot rule on is the tax provision," said Brian Phillips, communications director for Sen. Mike Lee. In other words, anyone with a vested legal interest in the constitutional violation would be eligible to sue Congress and the president for spending more than he government raised in revenue.

Who would be eligible to sue? Courts would have to decide, but Phillips said any member of Congress involved in the budget process would certainly be eligible. Individual citizens, political organizations, and class-action groups would probably line up to file such suits, and courts would have to decide whether they had "standing," in legal terms, to press their claims.

If the constitutional amendment had been violated, a federal court would issue an injunction ordering Congress and the president to stop breaching it. The legislative and executive branches would then have to decide what to do about that.

Congress's complex budget and appropriations process could make this even tougher. Congress and the president don't simply agree on a budget that transparently is or is not balanced; they agree on guidelines, then pass spending packages for various agencies and programs in chunks. If spending levels met constitutional standards, but Congress and the president bungled an attempt to fund the Department of Health and Human Services (HHS) in accordance with the new rule, courts would have to decide where to interject. The Supreme Court could issue an injunction that HHS spending had to fall in line with last year's levels, or it could word its edict more broadly. It's difficult to know how that would play out.

WOULD IT PASS?

Unlikely, although a balanced-budget amendment passed the House and failed in the Senate by just one vote in 1995.

Under Article V of the Constitution, amending the Constitution requires support from two thirds of both houses of Congress, plus three quarters of U.S. state legislatures. That's a high hurdle, even though President Obama would not have to sign it.

While a balanced-budget amendment would probably win support from some fiscally conservative Democrats, Republicans control just 240* out of 435 House seats and 47 out of 100 Senate seats. The provisions to cap spending and restrict the raising of taxes, especially, probably won't sit well even with Democrats who want to balance the budget.

But If Republicans did somehow manage to pass a balanced-budget amendment in Congress, it would become a massive campaign issue in nearly every election, state and federal, in 2012.

Image credit: Chuck "Caveman" Coker/Flickr

This post originally stated that House Republicans controlled 218 seats, not 240.